248 Mass. 323 | Mass. | 1924
The plaintiff alleges in her bill that on December 18, 1914, she conveyed certain real estate to one Hartshorn, by an instrument in writing which contained this provision: “ This deed is given to the grantee subject to a mortgage assigned to said William N. Hartshorn, which mortgage is still to remain in force' as if- this deed had not been given, except that any sum received from rents or income, or from any other source from this estate, above expenses and charges, together with any amounts expended in repairs shall be deducted from the amount due on mortgage note given to Thomas Arnold and assigned to said William N. Hartshorn with said mortgage. Notice is hereby given of incumbrances of record.” She also alleges that Hartshorn died in the year 1920 and that the defendants duly qualified as his executors on January 7, 1921; that the deed to Hartshorn was security for a loan of $1,000; that he was to hold the property and the rents collected as security, and afterpayment of the loan and the charges of operating the property, to convey the property to the plaintiff; that the net profits have been sufficient to pay the loan, “ the mortgage on said property, and a substantial sum in addition ”; that Hartshorn rendered no account to the plaintiff, and that the defendants on June 8, 1921, obtained a license to sell and “ did shortly thereafter sell said real estate ... for $3,250, subject to a mortgage then alleged
The plaintiff prayed for an accounting, that damages be awarded her for breach of trust of the defendants in selling the property; that they be ordered to pay the net profits due her; that the value of the equity above the mortgage be assessed and charged to the defendants; that they be ordered to pay this sum to her; and that a trust be declared " in the funds now in the hands of the defendants.” The bill was filed December 13, 1922. The defendants’ demurrer was sustained and the plaintiff appealed.
Hartshorn died in the year 1920. On June 8, 1921, the defendants obtained a license to sell and did sell the property. The plaintiff’s bill was filed December 13, 1922, more than one year after the sale. The bill is brought to recover the surplus rents received by the defendants and the value of the land sold by them, it being alleged that the deed to Hartshorn was given merely as security. The plaintiff does not seek to recover because of Hartshorn’s acts, and it does not appear that when he died sufficient funds had been collected to pay the plaintiff’s indebtedness. The claims of the plaintiff, both as to the profits and the value of the land, are demands against the defendants, and not against - Hartshorn.
Under G. L. c. 260, § 11, the claims against the defendants are barred, that statute providing that an action founded on any contract “ or act done ” by any person acting as an executor, administrator, or other legal representative of an estate of a deceased person, shall be brought within one year. The title of Hartshorn as an alleged mortgagee vested in the defendants as his executors. Nathan Miller & Sons, Ltd. v. Blinn, 219 Mass. 266, 271. They had the right to collect rents, Holman v. Bailey, 3 Met. 55, 57, and the property was sold by them. These acts of the defendants occurred more than one year before the bill was filed.
The statute speaks of an action, and an action, ordinarily, refers to a proceeding at law. Farnam v. Brooks, 9 Pick.
It is also alleged in the bill that the plaintiff in September, 1921, knew that the defendant sold the real estate; that she then wrote the defendant Andem asking for an account; that she told him she was going to bring suit and immediately consulted a member of the bar who, “ after some delay told her that he was too busy to take her case;” and that later she consulted another lawyer “ who, after some delay, on December 20, 1921, wrote her a letter declining to act.” These allegations, apparently, are made to bring the case within G. L. c. 197, § 10. By that statute in a bill in equity, filed by a creditor whose claim had not been prosecuted within the time limited by G. L. c. 197, § 9, if the creditor is not chargeable with culpable negligence he may be given judgment for the amount of his claim. This statute, however, applies only to creditors of a deceased debtor. It has no application to a creditor whose cause of action arises from the acts of an executor.
The frame of the plaintiff’s bill is not to redeem from the deed, alleged to be in effect a mortgage, which was given to Hartshorn; the title thereunder is stated to be outstanding in the name of third persons who are not parties to the suit. The plaintiff’s suit is based on the acts of the executor, and G. L. c. 197, § 10, does not help her. Nashua Savings Bank v. Abbott, 181 Mass. 531, relied on by the plaintiff, had reference to what is now G. L. c. 197, § 9, and was decided before the year 1911, when St. 1911, c. 147, was passed; see St. 1914, c. 699, § 3, now G. L. c. 260, § 11.
The interlocutory decree sustaining the demurrer and the final decree dismissing the bill are affirmed.
Ordered accordingly.
